- 1 - HC-KAR NC: 2025:KHC:42957 RSA No. 887 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.887 OF 2024 (DEC/INJ) BETWEEN: 1. SRI. VENKATACHALAIAH S/O HONNEGOWDA, AGED ABOUT 75 YEARS, RESIDENT OF C/O CHANNAMMA MUDDEGOWDA 7TH CROSS CHAMUNDESHWARINAGAR MANDYA CITY MANDYA DISTRICT-571401. …APPELLANT (BY SRI. RAJA L., ADVOCATE) AND: 1. SMT. H.K.LAKSHMI W/O VENKATESH & M.S. VENKATESH S/O SHIVAPPAGOWDA SINCE DEAD BY HIS LRS. SMT. SUNANDA, W/O LATE M.S.VENKATESH AGED ABOUT 58 YEARS R/O MALLEGOWDANAHALLI VILLAGE, HONAKERE HOBLI, NAGAMANGALA TALUK, MANDYA DISTRICT-571401. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:42957 RSA No. 887 of 2024 2. SRI. PRATHAP V., S/O M.S. VENKATESH AGED ABOUT 32 YEARS 3. PRITHIVILA D/O M.S. VENKATESH AGED ABOUT 30 YEARS RESPONDENTS NO.2 AND 3 BOTH ARE RESIDING AT NO.37, 9TH ‘F’ LAXMANA NAGARA, NEELAGIRI THOPU YAGGANAHALLI, BENGALURU – 560 091. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.01.2024 PASSED IN R.A.NO.25/2011 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, NAGAMANGALA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.09.2011 PASSED IN O.S.NO.2/2003 ON THE FILE OF CIVIL JUDGE AND JMFC, NAGAMANGALA. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. I have heard learned counsel appearing for the appellant and perused the judgment impugned passed by the Trial Court and the First Appellate Court. - 3 - HC-KAR NC: 2025:KHC:42957 RSA No. 887 of 2024 2. The present appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court. 3. The factual matrix of the case of plaintiff before the Trial Court while seeking the relief of declaration and injunction is that she is the owner and in possession of land bearing Sy.No.29/5 to the extent of 1½ guntas and boundary is also shown in the schedule and on the southern side of the property of the plaintiff, the defendant is having a house. It is the specific case of the plaintiff that on 16.05.1997, she had purchased the suit schedule property and she is in possession and all the records stands in her name. It is also her case that, out of 4½ guntas, while farming the road between Mysuru- Nagamangala, 3 guntas of land was acquired and remaining land is only 1½ guntas. She also obtained an order from the Commissioner of Pandavapura on 09.10.2001 for alienation of property in order to construct the house, since the suit schedule property belongs to the plaintiff. The defendant had questioned the right of the plaintiff before the Deputy Commissioner and hence, the property is not transferred in favour of the plaintiff. The defendant is not having any right - 4 - HC-KAR NC: 2025:KHC:42957 RSA No. 887 of 2024 over the property which is on the northern side of the property of the defendant and defendant made an attempt to encroach upon the property of the plaintiff. Hence, the plaintiff filed the suit for the relief of declaration and injunction. 4. In pursuance of the suit summons, defendant appeared and filed the written statement that he had purchased the property in Sy.No.29/5. The entire extent of land belongs to H.B. Kempegowda and he purchased the same from him on 02.05.1987 and claims that in the said boundary, the suit schedule property is also included and also contend that H.B. Kempegowda, the vendor of the plaintiff has not retained any property and he was not having any right to sell the property and he is the owner. It is contented that the owner and plaintiff indulged in creation of document and having obtained the revenue documents, sold the suit schedule property in favour of the plaintiff. The defendant also filed an appeal before the Assistant Commissioner, Pandavapura and questioned the order obtained by the plaintiff and also an appeal is filed before the Deputy Commissioner in R.A.No.21/05-06. - 5 - HC-KAR NC: 2025:KHC:42957 RSA No. 887 of 2024 5. The Trial Court having considered the case of the plaintiff and defendant, when the defendant took the defence that plaintiff by colluding with his vendor created the sale deed and got changed the mutation, having considered the contention of the defendant that plaintiff and his vendor created the document and also both oral and documentary available on record, not accepted the case of the defendant. Apart from that, title deed of the plaintiff is taken note of and granted the relief of permanent injunction, excluding the property which was acquired by the Government i.e., only in respect of 1½ guntas which belongs to the plaintiff and also taken note of admission on the part of D.W.1 during his cross- examination, wherein he categorically admitted that the property which he is having and also the vacant land on the southern side if it is added, it comes to 9½ guntas of land. The very claim of the plaintiff is that defendant is making an attempt to knock off the property of the plaintiff is elicited from the mouth of D.W.1, once he has admitted that on the northern side of his property, the total property is to the extent of 9 guntas. It is also the specific case of the plaintiff that, out of 9 guntas of land belonging to H.B. Kempegoda, half portion was - 6 - HC-KAR NC: 2025:KHC:42957 RSA No. 887 of 2024 sold in favour of the plaintiff and remaining half portion of the property was sold in favour of the defendant. The Trial Court while considering issue No.1, taken note of attempt made by the defendant to encroach upon the property which is in possession of the plaintiff to the extent of 1½ guntas and granted the relief of permanent injunction in respect of only 1½ guntas is concerned. 6. The appellant also filed an appeal before the First Appellate Court. The First Appellate Court having considered the grounds which have been urged, formulated the point whether the judgment and decree of the Trial Court requires interference. The First Appellate Court also having reassessed the material available on record, taken note of specific pleading of the plaintiff that she has purchased 4½ guntas in the same survey number and 3 guntas of land was acquired by the Government for construction of road and remaining 1½ guntas is in possession and enjoyment of the plaintiff and also obtained an order for non-alienation from the concerned authority. The First Appellate Court also taken note of the contention of the defendant denying the plaintiff's case and - 7 - HC-KAR NC: 2025:KHC:42957 RSA No. 887 of 2024 took the contention that whole extent in Sy.No.29/5 was purchased as per the boundary in the said sale deed and no property was retained by the defendant. But, he has colluded with the plaintiff and created the document and the said defence was also taken note of by the Trial Court and the First Appellate Court, while considering the material available on record and also the submission of the defendant that he has purchased the whole extent in Sy.No.29/5, including the suit schedule property. The First Appellate Court also taken note of the fact that in the entire written statement, defendant did not disclose that as per the boundaries, he is in possession of more than 4½ guntas in which extent. If he is in possession of more than 4½ guntas of the property, he must disclose about the specific extent and merely taking the defence that he had purchased the whole extent, an attempt is made to knock off the property of the plaintiff. The First Appellate Court also taken note of the fact that defendant has no right to acquire more than what he had purchased and he had purchased only 4½ guntas and got mutated the property to the extent of 4½ guntas and subsequently, an order was obtained for alienation only to the extent of 4½ guntas. When such being the case, - 8 - HC-KAR NC: 2025:KHC:42957 RSA No. 887 of 2024 both the Courts have take note of the attempt made by the defendant to encroach upon the property of the plaintiff and the very claim that he had purchased more than the extent what he had purchased is not accepted by the First Appellate Court and dismissed the appeal. 7. The main contention of learned counsel for the appellant before this Court is that plaintiff is also seeking the relief of declaration and injunction in respect of the property of the defendant. But, on perusal of the material available on record, the defendant himself made an attempt to knock off the property of the plaintiff claiming that he had purchased more than 4½ guntas of land. Both the Trial Court and the First Appellate Court taken note of the fact that only on the basis of the sale deed i.e., land to the extent of 4½ guntas was converted and mutation was in the name of the defendant, but claim made by the defendant during the course of trial is more than what he had purchased. Hence, both the Courts rightly comes to the conclusion that an attempt is made by the defendant to knock off the property of the plaintiff and also made an attempt is made questioning the very title and - 9 - HC-KAR NC: 2025:KHC:42957 RSA No. 887 of 2024 alienation made by the plaintiff before the competent authorities. Hence, comes to the conclusion that an attempt is made by the defendant to interfere with possession and answered the issues in favour of the plaintiff and additional issue is answered as ‘negative’, in view of the very contention of the defendant. Hence, I do not find any ground to interfere with the findings of the Trial Court and the First Appellate Court. 8. The main contention of learned counsel appearing for the appellant before this Court is that the said sale deed of the defendant is dated 02.05.1987 and there was no remaining property at the time of purchasing the property by the defendant from his vendor. The counsel would submit that without appointing the Court Commissioner, there cannot be any grant of declaration and injunction and material available on record is very clear with regard to identity of the property is concerned and also an attempt is made by the defendant to claim more than the property which he had purchased, though his sale deed is only to the extent of 4½ guntas. Hence, the very contention of learned counsel for the appellant cannot be - 10 - HC-KAR NC: 2025:KHC:42957 RSA No. 887 of 2024 accepted and both the Courts have taken note of both oral and documentary evidence and question of fact and question of law and considered the sale deed i.e., the extent what the plaintiff had purchased and the defendant had purchased i.e., only 4½ guntas. Hence, the very claim of the defendant that the land what the plaintiff is claiming comes within the property of the defendant cannot be accepted and the fact that defendant has already got alienated the property to the extent of 4½ guntas and he has constructed the house and is in exclusive possession to the extent of 4½ guntas is not in dispute. When such being the case, the question of admitting the second appeal and framing any substantial question of law does not arise. 9. In view of the discussion made above, I pass the following: ORDER The regular second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 40